At F.B.I., Frustration Over Limits on an Antiterror Law

By ERIC LICHTBLAU

Published: December 11, 2005

Some agents at the Federal Bureau of Investigation have been frustrated by what they see as the Justice Department's reluctance to let them demand records and to use other far-ranging investigative measures in terrorism cases, newly disclosed e-mail messages and internal documents show.

Publicly, the debate over the law known as the USA Patriot Act has focused on concerns from civil rights advocates that the F.B.I. has gained too much power to use expanded investigative tools to go on what could amount to fishing expeditions.

But the newly disclosed e-mail messages offer a competing view, showing that, privately, some F.B.I. agents have felt hamstrung by their inability to get approval for using new powers under the Patriot Act, which was passed weeks after the terrorist attacks of Sept. 11, 2001.

One internal F.B.I. message, sent in October 2003, criticized the Office of Intelligence Policy and Review at the Justice Department, which reviews and approves terrorist warrants, as regularly blocking requests from the F.B.I. to use a section of the antiterrorism law that gave the bureau broader authority to demand records from institutions like banks, Internet providers and libraries.

''While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us,'' read the e-mail message, which was sent by an unidentified F.B.I. official. ''This should be an OIPR priority!!!''

The bureau turned the e-mail messages over to the Electronic Privacy Information Center as part of a lawsuit brought by the group under the Freedom of Information Act, seeking material on the F.B.I.'s use of anti-terrorism powers. The group provided the material to The New York Times.

Congress is expected to vote early next week on a final plan for reauthorizing virtually all main parts of the law, including the F.B.I.'s broader power to demand records. President Bush, who has made renewal of the measure one of his top priorities, pushed again Saturday for Congress to act quickly.

''Since its passage after the attacks of September the 11, 2001, the Patriot Act has proved essential to fighting the war on terror and preventing our enemies from striking America again,'' Mr. Bush said in his radio address on Saturday.

While some Republicans and Democrats have attacked a brokered agreement reached Thursday because they said it does not go far enough in protecting civil liberties, the president hailed the agreement.

''Now Congress needs to finish the job,'' he said. ''Both the Senate and the House need to hold a prompt vote, and send me a bill renewing the Patriot Act so I can sign it into law.''

As part of the lawsuit brought by the Electronic Privacy Information Center, a federal court has ordered the F.B.I. to turn over 1,500 pages of material to the privacy information group every two weeks.

An earlier collection of F.B.I. documents, released by the group in October, showed numerous violations of internal procedure and sometimes federal law by the bureau in its handling of surveillance and investigative matters. In some cases, for instance, agents had extended surveillance operations and investigations for months without getting required approval from supervisors.

In the most recent batch of material, an F.B.I. memorandum sent in March 2004 said the process for getting the Justice Department to improve demands for business records would be ''greatly improved'' because of a change in procedure allowing the bureau to ''bypass'' the department's intelligence office, which normally reviews all such requests.

But officials at the Justice Department and the F.B.I. said they were unaware of any such change in procedure and that all bureau requests for business record were still reviewed and approved by the Justice Department.

A separate e-mail message, sent in May 2004 with the subject header ''Miracles,'' mockingly celebrated the fact that the Justice Department had approved an F.B.I. request for records under the so-called library provision.

''We got our first business record order signed today!'' the message said. ''It only took two and a half years.''

In its latest public accounting of its use of the library provision, which falls under Section 215 of the antiterrorism law, the Justice Department said in April that it had used the law 35 times since late 2003 to gain access to information on apartment leasing, driver's licenses, financial records and other data in intelligence investigations.

But the department has said that it had never used the provision to demand records from libraries or bookstores or to get information related to medical or gun records, areas that have prompted privacy concerns and protests from civil rights advocates, conservative libertarians and other critics of the law.

Michael Kortan, a spokesman for the F.B.I., said the frustrations expressed in the internal e-mail messages ''are considered personal opinions in what employees believed to be private e-mails not intended for large, public dissemination.''

Mr. Kortan added that ''the frustration evident in these messages demonstrates that no matter how difficult or time-consuming the process, F.B.I. special agents are held to a very high standard in complying with the necessary procedures currently in place to protect civil liberties and constitutional rights when using the legal tools appropriate for national security investigations.''

A senior official at the Justice Department, who was granted anonymity because many aspects of the antiterrorism law's use are classified, echoed that theme. ''For all the hand-wringing over potential abuses of the Patriot Act, what these e-mails show is that it's still fairly difficult to use these tools.''

But Marcia Hofmann, who leads the electronic privacy center's government section, said the e-mail messages ''raise a lot of unanswered questions'' about the F.B.I.'s use of Patriot Act powers and its relations with the Justice Department. Without fuller answers, Ms. Hofmann said, a reauthorization of the law by Congress ''would seem premature.''